(294) This action was brought by the plaintiff to recover of the defendant $898.95 upon an alleged contract, by which the plaintiff agreed to sell to the defendant a certain quantity of steel in bars at the aforesaid price. The defendant denied the contract, and especially alleged that it did agree to purchase from the plaintiff, a firm of Mulhouse, France, to be shipped and delivered to it at Gulf, in this State, a certain quantity of metal or steel, which was at the time falsely and *Page 213 fraudulently represented to the defendant to be "metalose," a new discovery, which was much lighter than and preferable to the steel in ordinary commercial use; that the said false representation was made to induce the defendant to buy a much larger quantity than, as the plaintiff well knew, the defendant intended or desired to buy; that when the "metalose" arrived it was discovered not to be as represented by the plaintiff, and the defendant refused to receive the same.
The court submitted issues to the jury, which, with the answers thereto, are as follows: "(1) Did the defendant contract with the plaintiff as alleged in the complaint? Answer: Yes. (2) Was the defendant induced by fraud and misrepresentation to enter into the alleged contract with the plaintiff? Answer: No. (3) Is the defendant indebted to the plaintiff on account of the alleged contract? If so, in what amount? Answer: $898.95. (4) Were Paul Bloch and Octave Bloch, at the time mentioned in the complaint, trading and doing business under the firm name of Universal Metal Company? Answer: Yes."
There was evidence tending to show that Frank D. Jones, superintendent of the defendant company, who represented it in the negotiations, told Alfred Jacob, the agent of the plaintiff, at the time the alleged contract was made, and with whom, as such agent, it was made, that he had received orders not to buy more than $100 worth of supplies at any one time without the approval of the president of the company, and that such order had in fact been given. Jacob replied (295) to Jones that the order would not exceed in amount $100. There was further evidence that the shops of the defendant company were not large, and only a small quantity of steel was needed, and Jacob was, at the time the alleged contract was made, notified of this fact, and that the order was given only to test the new metal. There was evidence introduced tending, as we think, to show the alleged fraud practiced upon the defendant. Requests for instructions were submitted by the defendant upon the questions of fraud and the authority of Jones to make the contract, and refused by the court. When the evidence was closed, and the court had discharged the jurors until after the noon recess, and directed them to leave the courtroom, the judge asked the defendant's counsel what evidence there was upon the question of fraud, and the matter was argued by the respective counsel for a short time, whereupon the judge remarked that the court would take a recess and give counsel an opportunity to examine and present any authorities they could find upon the question when the court convened after the noon recess. When the court reconvened, and before anything else had been done, the defendant's counsel requested the court to give a written charge. This was refused, upon the ground, as stated at the time by the judge, *Page 214 that the request was made too late. He then charged the jury orally, and instructed them, upon the second issue, that there was no evidence of fraud, and that they should answer the issue "No."
A verdict was rendered for the plaintiff, as above indicated, whereupon the presiding judge set it aside and directed the following order to be entered: "The court being of opinion that the order for goods upon which this action is based was not binding upon defendant, and for that reason he erred in his charge to the jury on the first issue, not as a matter of discretion, but as a matter of right on the part of the defendent, (296) the court sets aside the verdict and awards a new trial."
The plaintiff excepted and appealed. After stating the case: It was stated on the argument that the court thought the order for the goods was not binding upon the defendant because signed simply "Frank D. Jones, superintendent," without indicating for what company he was superintendent. The reason of the judge for setting aside the verdict, if insufficient, is immaterial, so that there appears a good and valid reason in the record for sustaining his ruling, and we are all of the opinion that such a reason does exist. There was evidence that Jones was an agent of limited authority, and there was also evidence, we think, that a fraud was practiced upon the defendant by plaintiff's agent in his dealings with Jones, and yet the court instructed the jury that, if they found Jones made the order for the metal on 19 September, 1905, they should answer the first issue "Yes," and that the evidence in the case was not sufficient to sustain an affirmative finding upon the second issue, and they should answer it "No." The defendant's counsel had asked instructions as to both of these issues. Their third prayer, as to the authority of Jones, was not very explicit, it is true, as it referred more to the fact that Jones had informed Jacob of his restricted authority as agent of the defendant than it did to the nature or extent of the authority itself; but if a liberal construction is given to it, we find it sufficient to embrace that feature of the case. It should have more definitely required the jury to find, first, what was the nature of Jones' authority, whether limited or unlimited, and, if they found that it was limited, whether, in the second place, the plaintiff, through Jacob, was notified of the fact. If Jones had only the restricted authority, as testified by him, he could not, of course, exceed the limit of his power when he made the contract.
Brittain v. Westhall, 135 N.C. 492; ib., 137 N.C. 30; Bank v. (297) Hay, 143 N.C. 326. *Page 215
Whether the evidence introduced to establish the fraud was sufficient for that purpose was a question for the jury, and the judge could express no opinion as to its weight. Revisal, sec. 535; Withers v. Lane,144 N.C. 184; S. v. Simmons, 143 N.C. 613. Whether there is any evidence upon which the jury could conclude as to the truth of the matter submitted to them for inquiry and decision, we have often said, is a question of law to be decided by the judge (Byrd v. Express Co., 139 N.C. 273; Campbell v.Everhardt, 139 N.C. 503; Lewis v. Steamship Co., 132 N.C. 904); but, there being some evidence which is more than conjectural or speculative to establish the fact in issue, and which the law adjudges to be fit for the consideration of a jury, whether it sufficiently proves the fact or not is a question for the jury. The cases already cited also establish this proposition, which is but the counterpart of the other. The able and learned judge who presided at the trial may have intended by the expression which he used to say that there was no evidence of the fraud, but even if this was his purpose, there was error, as, in the view we take of the evidence, without setting it out at length, we think there was at least some which the jury should have been permitted to pass upon.
We also are of the opinion that the judge erred in not reducing his charge to writing, as he was asked to do by the defendant's counsel. The request was made in apt time. It is impossible to distinguish this case from Craddock v. Barnes, 142 N.C. 89. The principle established in that case is clearly applicable to this one. The mere intervention of an argument by counsel, at the judge's invitation, upon the question as to whether there was any evidence of a particular fact, when the jury had retired from the courtroom for the recess, and as preliminary to the discussion before them after the recess, should not have the effect to except this case from the principle of that one. The argument (298) to the jury had not commenced when the request to the court was made. We do not see anything in the record to indicate that the judge did not have adequate time to write out his charge after he was asked to do so.Sawyer v. Lumber Co., 142 N.C. 162, would also seem to be direct authority against the ruling of the court that the request had come too late. In that case the present Chief Justice said: "The defendant, at the close of the evidence, and before the argument began, requested the court to put its charge in writing." This means, of course, "at the close of the evidence, and before the argument (to the jury) began." We then held that the judge committed an error when he failed to comply with the request.
There must be a new trial, for the errors indicated in the plaintiff's appeal.
New trial. *Page 216
DEFENDANT'S APPEAL IN SAME CASE.